Director of Public Prosecutions v Snyder (a pseudonym)
[2021] VCC 1216
•26 August 2021 DPP v Snyder (a pseudonym)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION SEXUAL OFFENCE LIST | Revised Not Restricted Suitable for Publication |
Case no. CR-18-02612
Indictment. J11486491
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLIFTON SNYDER (a pseudonym)[1] |
[1]These remarks have been anonymised by the adoption of pseudonyms to protect the identity of the victim.
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF TRIAL: | 27- 30 April, 3, 4, 6, 7, 10, 11, 17 May 2021 |
| DATE OF JUDGEMENT: | 10 June 2021 |
| DATES OF PLEA: | 5 August 2021, 18 August 2021, 23 August 2021 |
| DATE OF SENTENCE: CASE MAY BE CITED AS: | 26 August 2021 DPP v Snyder (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1216 |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence
Catchwords: Judge alone trial – conviction – eight charges of sexual penetration of a child under 16 – complainant died after giving evidence at committal and before trial – offending in 1993 and 1994 – delay and totality – operation of s 5(2BD)
Legislation Cited: Crimes Act 1958 s 45; Sentencing Act 1991 s 5(2BD), s 6B
Cases Cited:Akoka v The Queen [2017] VSCA 2014; R v Verdins [2007] VSCA 102; Clarkson v The Queen 32 VR 361; Brown v The Queen [2020] VSCA 212; Heath (a pseudonym) v R (2014) 45 VR 154; Carolan v R (2015) 48 VR 87; Price v The Queen (No 2) (2019) 277 A Crim R 304
Sentence:4 years and 6 months’ imprisonment with a minimum of 2 years and 6 months
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms T. Skvortsova | SLKQ Lawyers |
HIS HONOUR:
1Clifton Snyder,[2] on 10 June 2021, after a judge alone trial that took place between
27 April and 11 May this year, I convicted you of eight charges of sexual penetration of a child under the age of 16 for which the maximum penalty is 10 years' imprisonment.[2]A pseudonym.
2The victim in this matter, Zoe Powell,[3] was born in December 1978. You were born in September 1971. At the time of the offences the victim was 15 years old, you were 22 years old.
[3]A pseudonym.
Circumstances of the offences
3In 1993, the victim and her family lived at 40 Cooper Drive,[4] Mooroolbark. In that year, you purchased a house at 41 Cooper Drive.[5] You befriended the children in the street and their parents. Your house became something of hub for the children who would play games in your front yard while you played music.
[4]A pseudonym.
[5]A pseudonym.
4You soon became friendly with the victim’s mother and would often visit the victim’s house to have coffee with her mother.
5I accept that towards the end of 1993 Ms Powell would visit your house regularly to bake cakes and that on these visits you began to initiate physical contact with her by brushing past her and contacting her body and by tickling her on her sides. You became very close to Ms Powell and towards the end of 1993 the relationship developed into a romantic and emotionally intimate relationship.
6Ms Powell was not experienced sexually. She said in her statement to police that she had never kissed a boy and that she had been brought up in strict catholic environment. You wrote love letters to her which she showed to her best friend, Nicole Shaw,[6] as a student.
[6]A pseudonym.
7The victim said in her statement that towards the end of 1993 you asked her parents if you could date her. Her stepfather stipulated that there was to be ‘no sex’ between you and her. In the judgment on the trial I accepted this evidence.
8Thereafter, what developed was an ongoing sexual relationship that lasted until December 1995 when she had just turned 17. In September 1994, still aged 15, Ms Powell moved out of her family home to live with your parents, and she remained living there for several years.
9I will summarise the incidents and the particulars of the charges of which you have been convicted.
Incident on the victim’s 15th birthday
10On the victim’s 15th birthday in December 1993, you asked her to go with you to a wedding of a friend, Keith Smith.[7] Before the wedding, she used a Portman’s voucher to buy herself a new dress which she wore to the wedding. The wedding was held at a Greek Orthodox Church and the reception was at a winery in Red Hill. After the wedding, you took her back to your house. You parked your car around the comer so her parents would not be able to see that you were back.[8]
[7]A pseudonym.
[8] Statement of [Zoe Powell], 24 May 2018, 3-4 at [23].
11You took her straight to your bedroom. You took off her clothes and yours. Your penis was erect. You put her on the bed on her back and rubbed her vagina with your fingers to get her aroused. You wanted her to masturbate you, so she did. Whilst she was doing that, you performed oral sex on her with your tongue. She likened this to a snake flicking its tongue. This is the basis of Charge 3. While you were licking her vagina, you put two fingers into her vagina moving them in and out of her vagina for a while. This is the basis of Charge 4. When you finished that activity you guided her head onto your penis, and she gave you oral sex. You ejaculated into her mouth. This is the basis of Charge 5. She spat out your ejaculate. After you finished, her vagina felt like it had gravel rash.[9]
[9] Ibid., 4 at [24].
12When this had all ended, you and she walked to her house and had birthday cake with her family. You stayed for a while and talked to her parents.[10]
[10] Ibid., 4 at [25].
13She says that after this you would engage in sexual activity whenever you saw each other.[11]
[11] Ibid., 4 at [27].
The fisting incident
14Very early in 1994 you started shaving the victim’s legs with a razor in your bathroom. Not long after you started doing this, the victim recalls being in your bedroom naked on your waterbed. You were rubbing an ice block over her body. You were sucking her breasts one at a time. She lay on top of you. She masturbated you and you masturbated her vagina with your fingers. You then got on your hands and knees, and you picked her up and moved her around the bed. You forced your fist inside her vagina. This is the basis of Charge 10. Her head was at the bottom of the bed. You were punching inside her vagina and you pushed her off the bed. She landed on the floor. She was in agony. She screamed but then went quiet. She realised she was bleeding from her vagina. She was in shock. You told her not to worry. You said that this was what happened when girls first have sex.[12]
[12] Ibid., 6 at [37].
15Ms Powell told you how much you hurt her. She said you then became sorry and loving, and downplayed the incident.[13]
[13] Ibid., 6 at [38].
Incident at the Greaves[14] house
[14] A pseudonym.
16The next incident occurred at the house of William[15] and Susan Greaves[16] who were friends of yours. They lived in Croydon at the time of the incident. In January 1994 the Greaves went away to Gippsland for a holiday for a few days. You offered to go and look after their animals. Mr Greaves’ mother who lived in the United Kingdom died while they were away. You and the victim were at the house feeding the animals one night when the phone rang. It was William Greaves’ brother from the United Kingdom calling to tell William that their mother had died. You, Mr Snyder, then tried to get in touch with the Greaves by calling their accommodation in Gippsland. William Greaves gave evidence on the trial confirming these details.[17]
[15] A pseudonym.
[16] A pseudonym.
[17] Statement of [Zoe Powell], 24 May 2018, 6 [39].
17You then walked down to one of the bedrooms with the victim. She was on the floor naked. You had her masturbate you and you masturbated her. You and the victim performed oral sex on each other, which is the basis of Charges 11 and 12, and then you inserted two fingers into her vagina. This is the basis of Charge 13. You then ejaculated. She went to the bathroom and cleaned herself up.[18]
Numurkah incident
[18] Ibid., 7 at [42].
18The final incident took place at Easter time in 1994, when her family was on holiday in Numurkah. You drove up in your car and stayed for one night. You had an argument with her parents about your relationship with Ms Powell. They did not want you there. By this stage they were against the relationship.
19That night you slept in the lounge room and she was in a room with her sister. You told her to come out when everyone was asleep, which she did.[19] You were both naked from waist down. You penetrated her vagina with your fingers, which is the basis of Charge 20, and you also had her masturbate you at that time.[20]
[19] Ibid., 8 at [47].
[20] Ibid., 8 at [48].
20The next morning you left. You were angry and her parents were angry. A few days later, on the way home, her mother’s car had a tyre blow out. A tow truck took them to Kilmore where they stayed overnight. Her mother rang you and asked you to come and pick them up. You borrowed a Tarago van and you came and picked them up. You took a big bunch of red roses for Ms Powell.[21]
[21] Ibid., 8 at [49].
21In September of 1994, seemingly after some sort of mediation session, against the wishes of her parents, Ms Powell moved out of her family home and went to live with your parents. She remained living with them for several years before moving back home. In 2002 she married Hamish Powell[22] and they had three children together.
[22] A pseudonym.
22In 2011 your other offending with which I will deal later in these sentencing remarks, was mentioned in a Facebook post and participants in the Facebook conversation made references to her involvement with you. She felt humiliated. Not long after she spoke to the Office of Public Prosecutions about the offences, and she was referred to Detective Matthew Phelan. She organised a time to meet Detective Phelan at Lilydale Police Station. She spoke to Detective Phelan but decided that the time was not right to report what happened to her because she was pregnant and had a young family.
23In February 2014, she gave blood at the Ringwood blood bank. Her allocated nurse was the mother of one of your earlier victims. She said she had dated you when she was young. The meeting was emotional, and your earlier offending was brought up. Soon after this Ms Powell was admitted to a psychiatric hospital.
24In April 2018, she voluntarily admitted herself into hospital and whilst she was there, she decided it was time to do something about your offences. She rang Knox Sexual Offences Unit on 26 April 2018 and spoke to Detective Senior Constable Amber Coutts. She signed her statement in this matter in May 2018. She gave evidence at the committal proceeding in December 2018. Ms Powell died in March 2019.
25I am satisfied that these incidents took place in the context of a sexual relationship between you and Ms Powell. In her statement and in her evidence at the committal the victim detailed regular sexual activity before her 16th birthday, and I have accepted this evidence beyond reasonable doubt. Of course, I do not punish you for anything other than the charges of which you have been found guilty, but it cannot be said that these were isolated acts.
26You were interviewed about the offences in June 2018. You admitted a romantic relationship but said there was no sexual activity in the relationship beyond kissing and hugging. This is the position you took in the trial in this case. The details of your interview are summarised in the Judgement in this matter, and I will not repeat that account in any detail.
Victim impact statements
27Victim impact statements were tendered from the victim’s husband Hamish Powell, her mother Alana Wingard,[23] her two sisters Jane Smith[24] and Molly Steele[25] and her brother Jeff Bailey.[26] The statements of Ms Wingard and Mr Bailey were read out. There are some inadmissible parts of the statements which I have disregarded, in particular, where the statements focus directly on Ms Powell's death and its impact and where direct blame is attributed to you for Ms Powell’s death. It is entirely understandable these matters are raised but I must consider the victim impact statements in accordance with the legislation relating to the direct impact of the offences. I have had regard to the submissions of Ms Skvortsova in assessing the victim impact statements. Nevertheless, the victim impact statements are moving and powerful documents describing the effect on Ms Powell of your offending as observed by the authors of the statements and the impact on the authors of the revelation of your offending against Ms Powell. These impacts are significant matters to consider in sentencing this case.
[23] A pseudonym.
[24] A pseudonym.
[25] A pseudonym.
[26] A pseudonym.
Gravity
28In the case of Clarkson v The Queen 32 VR 361, the Court of Appeal held that it is presumed children will suffer long-term physical and psychological harm from sexual activity, irrespective of consent. The circumstances in which consent is given can be relevant, for example, by considering the power balance between the victim and the offender, but not the fact of consent itself. In this case the defence submitted the offending occurred within a ‘romantic relationship’.
29In my opinion in this case there was a power imbalance between you and the victim. You were some 7 ½ years older than her; you were employed running your own business as a mechanic; and you owned your own house and you were living alone. You had, prior to your offending with the victim in this case, engaged in sexual offending with young males in a manipulative way, and this was a continuation of that pattern of behaviour. Ms Powell was a naïve and inexperienced teenager struggling to fit in with her family. In my opinion, you identified her innocence and vulnerability and exploited this by showering her with attention and affection. The power you had over her is illustrated by your efforts to take control of her life which led to a schism between the victim and her family. You admitted in your record of interview you engaged in a power struggle with her parents. In my opinion you did this to continue your relationship, your control and sexual activity with her. Your offending ultimately led to a split between her and her family and her alienation from them for several years. You exploited Ms Powell for sexual gratification and betrayed her trust and that of her parents.
30That said I accept you did have genuine affection for Ms Powell and what developed was a type of romantic relationship which went on for a year after her 16th birthday. You were clearly a person struggling with your own sexual identity, and you were at that time still a relatively young man. However, by the time this relationship developed your observance of the boundaries of age-appropriate sexual relationships was non-existent. This is evident in your record of interview.
31I have no doubt that the victim suffered very considerable harm as a result of your offences. This is to be expected and is recognised in the authorities to which the prosecution referred in their submissions. Such harm is well established in the evidence and reinforced in the victim impact statements. The presumption of harm has not been rebutted in this case.
32Ms Powell was clearly troubled as an adult by what had happened with you when she was a child, confiding in Nicole Shaw over the years and reporting the matter to Detective Matthew Phelan in 2011. The Facebook reference to her in connection with your other offending was humiliating for her, given her history with you and your offending against her. The fisting incident was plainly indelibly etched into her memory and as an adult she mentioned that incident to both Ms Shaw and Detective Phelan.
33Evidence was led at the trial of the victim’s serious psychiatric problems from 2012/13 until her death. Ms Skvortsova submitted that I cannot have regard to the victim’s psychiatric problems after that time because the evidence discloses multiple potential causes, and I cannot therefore be satisfied beyond reasonable doubt that your conduct caused or contributed to those problems.
34The diagnoses referred to in the evidence of Dr Sullivan on the trial, based on the psychiatric notes, was one of post-traumatic stress disorder and/or a borderline personality disorder. He said there is overlap between these two conditions. Dr Sullivan gave evidence that sexual abuse as a child can be a casual factor in post-traumatic stress disorder and in personality disorders, and that the types of offences detailed in Ms Powell’s statement are the sorts of things that could trigger post-traumatic stress disorder.
35Ms Skvortsova argued that the death of the victim's father when she was very young; the evidence of a difficult relationship with her family in her teenage years; social media references to her association with you and guilt at being associated with you are all matters capable of giving rise to a personality disorder or post-traumatic stress disorder She submitted this was the evidence Dr Sullivan gave at the trial, and this is true, but in my opinion that evidence has to now be considered in light of proven sexual offences that you committed against Ms Powell.
36Ms Skvortsova also submitted that Ms Powell's parenting difficulties from around 2013 or earlier were factor in her psychiatric problems.
37
In my view, apart from the death of her father the matters referred to by
Ms Skvortsova, said to provide alternative explanations for the victim’s psychiatric difficulties, cannot be assessed independent of your offending against her. The incident at the blood bank and the effect it had on Ms Powell can hardly be divorced from the offences I have found proven. In my opinion as a matter of common sense the weight on her of that interaction was elevated because she too was a victim of your offending. That incident contributed to the onset of significant psychiatric problems for her. Ms Powell herself said in her statement that ‘it triggered something inside of me’. She became suicidal for the first time and after a few days at home she was admitted into a psychiatric hospital for containment. Her husband Hamish Powell gave evidence as to how her mental state declined after that incident. He said that that was the start of her battling with those sorts of issues. He said that after the blood bank incident she just could not control it.
38In my opinion, her problems with her family were aggravated by her involvement with you.
39Hamish Powell gave evidence as well that her parenting issues stemmed from her fear she would not be able to protect her daughter.
40It is also clear that in the period she made her statement to police and thereafter she was very troubled by what had happened with you. The Epworth notes and the letter Ms Powell wrote to you but never sent illustrate this. Indeed, the letter written in 2014 was an eloquent expression by Ms Powell of the enduring harm your offending caused her.
41I do not find that the victim’s psychiatric difficulties were exclusively the result of your offences and I accept there were other issues. However, I am satisfied beyond reasonable doubt that your offending contributed to the serious disabling psychiatric difficulties she endured for many years prior to her death. It was against the background of her psychiatric issues that Ms Powell committed suicide; however, in sentencing in this case I make clear that I do not attribute responsibility to you for her death.
42The impact of your offending endured throughout her life. The harm that is presumed to occur from sexual offending such as yours plainly occurred in this case.
43The offences of which you have been found guilty took place over a number of months involving eight instances of sexual penetration across four incidents, in the context of a sexual relationship. Your actions involved unprotected sexual activity, although there was no penile-vaginal penetration. Charge 10, the fisting incident, was an incident involving substantial force and caused Ms Powell very serious pain and an injury. That incident was a very traumatic one for her. Charge 5, where you ejaculated in her mouth was a degrading incident that also had a significant impact on her. Charge 20 at Numurkah occurred when you were staying overnight with her family, a brazen breach of trust.
44In my opinion your moral culpability for this serious offending is significant.
Remorse
45You pleaded not guilty to the charges in this case and that is your right. You are not to be punished for this, but the mitigation afforded by a plea of guilty is absent. There is no evidence of the remorse a guilty plea indicates. There is no evidence of remorse at all. Ms Powell never had the benefit of hearing you acknowledge your responsibility for these serious crimes; nor have her husband and family. Considerations of totality and the weight to be given to delay, which I will deal with later in these remarks, would have been of greater mitigatory significance had you acknowledged your guilt in respect of the charges of which I have found you guilty.
Personal circumstances
46You are now almost 50 years old. You were adopted at birth by your parents Michael[27] and Isobel Snyder.[28] You lived at home until you were 17 years old. You were trained as a motor mechanic and you had your own business as a mechanic. You were not close to your brother and there was a rift with your father. However, your parents have stood by you over the years. They are now in their 80’s and since you have been back in the community you have been living with them and your partner, Ben Thomas.[29] You are currently reliant on a Centrelink benefit. You have spent many of your adult years in prison for the offences you committed over a 20-year period commencing in the mid 1980’s. That period of imprisonment cost you any chance you had of a successful career.
[27] A pseudonym.
[28] A pseudonym.
[29] A pseudonym.
Delay and totality
47Ms Skvortsova submitted that delay is a significant mitigating factor in this case. These offences took place in 1994. Ms Powell made her police statement in May 2018. You were interviewed and charged in June 2018. The committal hearing took place in December 2018. The initial trial date was in March 2020, but the matter did not proceed at that time as I allowed an adjournment for the defence to obtain expert evidence. The matter would have been able to proceed in 2020 but for the suspension of jury trials in response to the pandemic, although the Interlocutory Appeal would have caused additional delay. Nonetheless the suspension of trials led to a delay of approximately 12 months. Ms Skvortsova submits that the delay since proceedings commenced has had a deleterious effect of your mental health by reason of the stress and anxiety it has caused for you. I take this into account but observe that some of the delay has been produced by your determination to contest every aspect of the case.
48Delay in cases of sexual offending against children is a common occurrence as is recognised by the law. This is because victims of sexual offences often take many years to process what has happened to them and feel ready to come forward. Therefore, the delay in complaint is of less significance in such a case.
49Any assessment though of the impact of the delay in this case needs to be considered in light of your history since this offending in 1994. In that period, you have been sentenced on two occasions for sexual offences against young males. Between 2007 and 2016 you were in prison. It is necessary to set out the details of those sentences and the periods you have spent in custody.
50On 14 February 2007, you were sentenced by His Honour Judge Wodak to a total effective sentence of 10 years with a minimum of 8 years for two charges of indecent assault, four charges of gross indecency with a child under your care, supervision or authority, nine charges of sexual penetration of a child aged between 10 and 16 years who was under your care, supervision or authority, nine charges of indecent act with a child aged 16 under your care, supervision or authority, five charges of sexual penetration of a 16-17 year old child who was under your care, supervision or authority and one charge of attempted sexual penetration of a 16–17-year-old child under your care, supervision or authority. You were aged between approximately 16 years and 29 years when you committed those offences. The commission dates of those offences range from around 1987 until 2007. Only one of those offences, said to have been committed when you were aged 20-22, was closely proximate to this offending. Although there was further offending in 1996.
51On 3 June 2011 you were sentenced by His Honour Judge Gucciardo to 6 years with a minimum of 5 years for two charges of indecent assault and six charges of committing an indecent act with or in the presence of a child under the age of 16. Two of these charges were representative charges relating to weekly conduct over three years between 2004 and 2007. Three other charges were rolled up charges. The charges involved four victims in total. The sentence imposed by His Honour was concurrent with what remained of the earlier sentence of Judge Wodak.
52You were released on parole in December 2016. At that point you had been in custody for almost 10 years. Your parole expired in November 2017. You were then placed on an interim serious offender order which was in place between 23 November 2017 until 20 December 2018, at which time a final order was made. In April 2018 you had been directed to reside at Corella Place, and you remained there until the charges for this matter were laid at which time you were remanded in custody. You remained in custody until 1 April 2019 when you were granted bail with a condition that you reside at Corella Place or as otherwise directed by the post sentencing authority. Bail was not opposed and you were placed at Corella Place and then Emu Creek until 10 September 2020 when you were directed to reside in the community with your parents. You have lived with them since then.
53Sometimes a long delay will be significant in sentencing because the offender has reformed and has not reoffended. In this case whilst you did reoffend in the years after these offences you were detected and then punished in 2007, and again in 2011. The imposition of those earlier sentences of imprisonment in the intervening period between the commission of the offences in this case and my findings of guilt, requires me to apply the totality principle in formulating the sentences for these charges. Had these matters been dealt with during the currency of the earlier sentences undoubtedly the application of the totality principle would have resulted in some concurrency with the sentences you were serving. Therefore, in formulating the sentences in this case, I have taken into account the lost opportunity for concurrency caused by the delay as a moderating factor in deciding the appropriate sentences.
54Furthermore, that lengthy sentence of imprisonment meant you were in prison from your late 30’s until your late 40’s and now you face being returned to prison after a period in the community. In deciding the weight to be given to specific deterrence, I do not ignore that you spent such a long period in prison for offending committed before and soon after these offences. The decade you served in prison has been a strong signal to you of the severe punishment you would receive if you committed further sexual offences.
55There is no suggestion of reoffending in the period since your release. You are a much older man than when you last offended in 2007 and in the last few years you have undertaken extensive counselling to address the underlying issues of your offending. In the years since you were sentenced in 2007 you have completed many courses both rehabilitative and educational as set out in the summary of courses tendered on your behalf on the plea hearing.
56Since 2019 you have sought out counselling from a psychologist Ms Chantelle Kyriakidis and you have attended some 42 counselling sessions in that time. She has provided two reports which were tendered on the plea. I have taken into account the contents of those reports. In attempting to grapple with the basis of your offending she said this in her first reports, that you suffer from a narcissistic personality disorder which includes low self-esteem, a vulnerable sense of self and internalised shame. That had been a diagnosis of a Dr Michael Davis that she felt was consistent with your presentation.
57She said that your recollection was that you were experiencing anxious and depressive symptomology in your childhood adolescence and during the period of the offending behaviour. She described that you had poor attachment with your parents and a disrupted identity development occurring in the context of your emerging sexuality that, at the time, was not well accepted within mainstream society and that was coupled with a negative or self deprecative body image, poor social and sexual maturity and an instability within your home environment.
58She dealt with these issues in some depth and I've had regard to those matters. As I indicated, she did say that you exhibited features of a narcissistic personality disorder which was a diagnosis made earlier this year by Dr Davis who, as I understand it, assessed you in relation to supervision order proceedings. Ms Kyriakidis as your treating practitioner, did not conduct her own risk assessment but referred to the assessment of Dr Davis.
59Your risk of reoffending, based primarily on the static feature of paedophilic tendencies, is said to be moderate. You seem to have settled into a lifestyle that has reduced your level of risk. In my view given the length time that has elapsed since you last offended and the lengthy sentence you have served in that time, considerations of community protection are less significant now than at the time of those sentences were imposed. It is reasonable to have some optimism that you will not reoffend.
60However, your lack of remorse for this offending is another factor to consider in the risk assessment and the assessment of Dr Davis cannot have had regard to the offending in this case.
Letters of support
61A number of letters of support were tendered on your behalf. Your brother, Matthew Snyder,[30] who gave evidence on the trial provided a letter. He speaks of the impact on you of your prior convictions, including the loss of your property, your business, your reputation, and most of your friends and family. He refers to lengthy discussions he has had with you about your offending (this must refer to the offending for which you served the sentences in 2007 and 2011). He says you have shown remorse. Again, this must refer to your other conduct and cannot apply directly to these offences. He says he condemned your actions at the time, but now describes you as moving forward in a positive way since your release; engaging in counselling, working hard to establish a new business, and providing financial and domestic support to your elderly parents. In his view, this is all evidence of your unlikelihood of reoffending. He says in his letter that any further term of imprisonment could almost destroy your parents, financially and emotionally.
[30] A pseudonym.
62Your partner, Ben Thomas says you met in prison and have been in a relationship for over 10 years. In his letter, he speaks of your strong minded, caring, and hardworking nature. He says that since your release, Mr Thomas says you have dedicated yourself to supporting those around you, such as helping your elderly neighbours around the house, working at the local Mower Shop, providing business to a charity store and supporting your parents, who he describes as struggling to cope without you.
63He says he has personally seen you taking ownership of what you have done through ongoing counselling. Again, this cannot relate to this offending which you have denied. He says you have turned over a new leaf. From his perspective, you are doing everything in your power to not feel like you need to reoffend. He describes your new state of mind as one of generosity and happiness.
64Your parents Michael and Isabel Snyder provided a letter on your behalf. They speak of the assistance you provide to Mr Thomas for his mental health issues and they worry about Mr Thomas if you are returned to custody.
65They describe your hardworking character and business activity after your release in 2017. In relation to your move to Corella Place and later into prison in the middle of 2018, your parents say, ‘you helped them get back on their feet, but then you were gone again’. They say they had seen immense change in you at that time, and you were moving in the right direction. They say that your Centrelink payments at Corella kept the family afloat and they worry about losing their accommodation if you are returned to custody. Both in their eighties, their health and frailty are concerns and apparently you had begun renovations to make their home safer. In sentencing you, I am asked to consider the impact that your re-incarceration will have on your parents as increasing the burden on you of your imprisonment. I will return to that matter.
Psychological report & Verdins arguments
66Ms Skvortsova submitted based on Ms Kyriakidis’ report and evidence that you have a narcissistic personality disorder, that it is likely you were exhibiting features of this disorder when you groomed and manipulated Ms Powell. On that basis she argued your moral culpability is reduced. The application of the principles in R v Verdins [2007] VSCA 102 (“Verdins”), which were extended in Brown v The Queen [2020] VSCA 212 to personality disorders in some circumstances, require a judge to act on cogent evidence of a realistic connection between the mental disorder and the offending. The onus is on the offender to demonstrate such a connection on the balance of probabilities.
67In my view it is doubtful a narcissistic personality disorder of the type described in this case is of the severity required to give rise to Verdins principles. However, in my opinion the submission fails at the evidentiary hurdle. Ms Kyriakidis, in her report and her oral evidence, said that Dr Davis had diagnosed you as having a narcissistic personality disorder. She agreed with that diagnosis based on her consultations with you. She said in her second report at paragraph 14:
Whilst it is difficult to make a retrospective diagnosis based on the limited information available there is a possibility that Mr [Snyder] did present with features of this disorder or indeed the disorder during his early 20’s.
68Ms Kyriakidis said that she had not herself conducted a formal assessment for a personality disorder or consulted collateral information such as school reports from when you were young. Ms Kyriakidis readily conceded she could go no further than postulating a possibility of a personality disorder at the time of the offending. Also, she had not discussed the offending with you so she could say no more than that grooming is ‘somewhat consistent with the features’ of a narcissistic personality disorder.
69In my view this evidence does not constitute cogent evidence of a realistic connection between a mental disorder and the offending. Any assessment is considerably hampered by the distance of 25 years between the offending and the diagnosis and by your denials of the offending precluding a detailed analysis of the realistic connection.
70
Ms Skvortsova also submitted that Verdins principles 5 and 6 apply based on
Ms Kyriakidis’ report and oral evidence. Ms Kyriakidis’ said in her evidence you will be “vulnerable to the likelihood of re-emerging depression and anxiety because your sense of self is still quite fragile”. Mr Pirrie took no issue with the application of these principles. I have had regard to your psychological deficits as likely to increase the burden of your imprisonment and that there is real risk that imprisonment will have an adverse effect on your mental health.
Akoka Principles
71Ms Skvortsova submitted that the 529 days you spent at Corella Place and then Emu Creek should be taken into account pursuant to the principles in the case of Akoka v the Queen [2017] VSCA 2014 (“Akoka”). The offender in that case had spent a period on bail in the restrictive environment of Odyssey House. Corella Place and Emu Creek are plainly restrictive environments as set out in the affidavit of Andrew De Propertis, although less restrictive than a prison. In the case of Akoka it was held that a sentencing judge can take such the punitive nature of a period of residency in a drug rehabilitation facility into account as part of the instinctive synthesis and that it is relevant to both the head sentence and non-parole period. The prosecution submitted that section 5(2BD) of the Sentencing Act precludes me from having regard to the fact that you are subject to a serious offender order, and I must disregard the time you spent at Emu Creek and Corella Place on bail for these charges. The prosecution submitted that because you were living at Corella Place when you were charged with these offences and then returned there after the period in custody on remand these charges had nothing to do with your placement.
72There are a number of Court of Appeal decisions which discuss the operation of s 5(2BD) although none are in the context of the issue raised in this case. In the case of Heath (a pseudonym) v R (2014) 45 VR 154, the Court of Appeal (Redlich and Beach JJA) observed the likely purpose of the s 5(2BD) ‘is to ensure that offenders do not obtain a sentencing discount as a result of the existence or possible imposition of a supervision order’.[31] In Carolan v R (2015) 48 VR 87, the court noted the likely purpose of s 5(2BD) is to remove the existence of the Serious Sex Offenders (Detention and Supervision) Act 2009 regime as a sentencing consideration, when fixing the length of the imprisonment term.[32] In the case of Price v The Queen (No 2) (2019) 277 A Crim R 304, in the context of a sentencing appeal concerning an offence of breaching a supervision order by committing a further sexual offence, the Court of Appeal interpreted s 5(2BD) as applying a prohibition to the consideration of a present or future order, rather than being subject to a supervision order in the past. At paragraph 56 the court said this:
The terms used in s 5(2BD) are important. Paragraph (a) states that a court cannot have regard to the fact that an offender is subject to an order. Paragraph (b) provides that a court cannot take into account the “possibility or likelihood” of an order. Section 5(2BD) therefore deals with the present and the future. The sentencing court cannot have regard to the fact the offender is at the time of sentence, or may be in the future, subject to an order. The section does not prohibit a sentencing court from taking into account the fact that an offender was subject to a supervision order at the time of the offending.
[31] Heath (a pseudonym) v R (2014) 45 VR 154 at [22].
[32] Carolin v R (2015) 48 VIR 87 at [43].
73The commentary on s 5(2BD) is limited but the commentary to which I have referred suggests the provision ‘deals with the present and the future’ rather than the past. There is no clear statement that being bailed to a restrictive or ‘quasi-custody’ environment is included in the prohibition. In my view there is ambiguity as to how this provision applies to these circumstances. In interpreting a criminal statute, any ambiguity must be resolved by the interpretation most favourable to the defendant.
74In this case you were bailed to live at Corella Place or as directed by the post sentencing authority and you lived in restrictive environments for the next 529 days. Bail was not opposed after you spent some 301 days in custody. Presumably the proposed residential condition in which you were to be placed was relevant to the assessment of risk and the decision to grant bail.
75I am of the view that the Akoka principles and s 5(2BD) can operate concurrently, and I have regard to the restrictive environments of Corella Place and Emu Creek to which you were bailed as a punitive factor that operates to lower the head sentence and the non-parole period to be imposed in this case.
Burden of imprisonment
76Restrictive conditions are in place within the prison system in response to the pandemic. Such conditions are likely to prevail for the foreseeable future. Visits are suspended and other restrictions are still in force. I take these matters into account as increasing the burden of your imprisonment.
77Additionally, the burden of a return to custody now that your parents are much older, and your partner suffers from mental health issues is accentuated by the current uncertainty in the community because of the pandemic.
78I have also taken into account the evidence, although somewhat tenuous, that your financial contributions to the rent and living expenses will negatively affect your parents and partner as a factor relating to the burden on you of re-incarceration.
Serious sexual offender provisions
79Your criminal history means that you are to be sentenced pursuant to Part 2A of the Sentencing Act. That means that pursuant to s 6B of that Act on all charges you fall to be sentenced as a serious sexual offender. In determining the length of the sentence, I must regard protection of the community from you as the principal purpose for which the sentence is to be imposed. This does not mean that other sentencing purposes are excluded and having regard to my finding that your prospects of rehabilitation have improved and your risk of reoffending has reduced community protection weighs less heavily than if I was of the view that your risk of reoffending remained high.
80The prosecution does not urge that s 6B requires a sentence longer than that which is proportionate to the gravity of the offence, and I agree.
81The legislation provides that every term of imprisonment imposed for a relevant offence must, unless otherwise directed, be served cumulatively on any other sentence. The serious sexual offender provisions qualify the totality principle in the sense that the sentencing judge cannot rely on totality in a way which undermines the legislative policy of s 6E. However, on the facts of this case it remains a significant sentencing consideration.
82In your case I have made orders for partial and complete concurrency to reflect all relevant mitigating considerations including the duration of the offending and that it was a course of conduct; the need for concurrency for charges arising within a discrete incident within a short time frame (noting that charges 3 and 4 and charges 11 and 12 took place concurrently); the need to impose a proportionate sentence and avoid a crushing sentence, delay and the lost opportunity for concurrency with the 2007 and 2011 sentences; the time spent at Corella Place and Emu Creek on bail and your improved prospects of rehabilitation and a reduction in your risk of re offending.
83I direct that it be noted in the records of the court that I am sentencing you as a serious sexual offender on all charges.
Submissions
84Ms Skvortsova submitted that in the circumstances of this case a total effective sentence of three years was in the range of appropriate sentences and that I should sentence you to time served as the immediate period of imprisonment and suspend the balance of the sentence.
85The prosecutor Mr Pirrie focused on the aggravating circumstances of your offending and submitted that an immediate period of imprisonment was appropriate.
Current sentencing practices
86Both parties filed comparative cases as an indication of current sentencing practices. The cases referred to by the prosecution involved substantial sentences of imprisonment. The defence comparative cases were examples of where suspended sentences or partially suspended sentences had been imposed. I was not provided with any cases or information relating to sentencing practices at the time of the offences.
87Current sentencing practices are a guide to the appropriate sentencing range but are not a controlling factor in the exercise of the sentencing discretion.
Sentencing principles
88Sexual offending against children is rightly considered by the courts and the community to be abhorrent. The victims of such offending endure harm throughout their lives which is what happened to Ms Zoe Powell.
89Considerations of general deterrence, denunciation, community protection and just punishment must be given significant weight in the sentencing process for your offences, Mr Snyder. I have given less weight to specific deterrence given the long period you spent in prison between 2007 and 2016.
90I must not lose sight though of your rehabilitation and it does seem to me you have taken steps in that direction. I have applied the totality principle to the current offending and as against the earlier sentences.
91I have balanced the objective gravity against the mitigating matters that apply in this case as best I can. I have attempted to outline those mitigating matters in some detail in these remarks.
92In my view a proper application of sentencing principles takes the total effective sentence outside the 3-year period where a suspended sentence is available.
93In fixing the non-parole period I have had regard to the very lengthy sentences you served involving a year of parole which you successfully negotiated, the reduction in your risk of reoffending since then, the reduced need for specific deterrence, and the period you spent at Corella Place and Emu Creek. In my opinion a sentence which allows for a significant period of supervision is appropriate.
94When I announce the sentences I will deal with them in terms of concurrency and then cumulation for the ease of understanding. Because there is a serious sexual offender, they ought to be expressed in what is concurrent but I will do both, Mr Pirrie and Ms Skvortsova, so it is clear enough.
Sentence
95HIS HONOUR: Could you please stand, Mr Snyder? The sentence is as follows:
Charge Charge Description Sentence Cumulation 3 Victim’s 15th birthday (oral sex) 18 months 4 Victim’s 15th birthday (digital penetration) 18 months 4 months 5 Victim’s 15th birthday (penile penetration) 22 months 10 months 10 Fisting incident 30 months (base) 11 Incident at the [Greaves’] house (oral sex) 18 months 3 months 12 Incident at the [Greaves’] house (oral sex) 18 months 13 Incident at the [Greaves’] house (digital penetration) 18 months 3 months 20 Numurkah incident (digital penetration) 22 months 4 months[33] TES: 4 years and 6 months
NPP: 2 years and 6 months
PSD: 308 days[33] After the matter was adjourned, court was reconvened that day to correct an error, namely that a period of five (5) months cumulative had erroneously been announced in respect of Charge 20, not four (4) months.
96HIS HONOUR: Those are the figures. There are no other orders required?
97MR PIRRIE: No, Your Honour.
98HIS HONOUR: Mr Snyder can be removed. I will now adjourn.
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